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    Thursday, August 11, 2022

    A reckoning for Groton and its police chief is before Supreme Court

    I'm not a lawyer, and I will admit that there are a lot of thorny legal issues to be resolved in the lawsuit accusing Groton Town police Chief Louis Fusaro of murder, negligent homicide or manslaughter, which is pending before the Connecticut Supreme Court.

    The principal issue to be soon decided by the court, now that briefs have been filed, is whether Fusaro and the other state police officers he was supervising when they fired projectiles at a suicidal man, leading him to shoot himself, are protected from litigation by the state's sovereign immunity.

    Attorneys for the estate of Timothy Devine, the 30-year-old firefighter who shot himself after being fired upon by Fusaro's squad at Avery Point, say in their filings before the high court that they are suing the police chief and the other officers individually, not in their official capacities.

    In one brief in the lawsuit, the lawyers argued that Devine never threatened anyone but himself, and that Fusaro's team never allowed his family to speak with him before they fired the projectiles at him.

    "Once the defendants shot the plaintiff, they were not acting in their official capacity," the estate's motion continues. "They then became common criminals and are sued in their individual capacity," the lawyers have argued.

    It's no different, they argue in one of the lawsuit briefs, than if a "Police officer pulled a citizen over for speeding, and after handcuffing him, beat him to death, he was no longer acting in his official capacity. The same is true here."

    In their brief before the state Supreme Court, attorneys for the estate contend that Fusaro and his squad fired the projectiles at Devine, who was threatening to shoot himself in the long standoff, so they "could end this non-threatening situation as quickly as possible and go home."

    Attorney General William Tong, representing Fusaro and the other state police officers he supervised, presents extensive case law in recent briefs before the Supreme Court why sovereign immunity should prevent the lawsuit from proceeding.

    Former Town Manager Mark Oefinger, choosing to hire Fusaro in 2015, when the lawsuit against him in Devine's 2012 death had already been filed, has put the town in what may soon become a thorny situation.

    What if the Supreme Court agrees with what the appellate court has found, that sovereign immunity does not apply in this case and Fusaro can be sued individually in Devine's death?

    Are the people of Groton to wait patiently while Fusaro defends himself in a civil case accusing him of a crime resulting in a young Groton man's death?

    If the Supreme Court greenlights the case against Fusaro, it will be sent back to the lower courts where a new test will occur: the court must find that Fusaro and the other defendants acted wantonly, recklessly or maliciously in Devine's death before the case can continue.

    If the court does find the Groton police chief acted wantonly, recklessly or maliciously in someone's death, are town residents going to feel comfortable with his leading the public safety department?

    I asked a spokesman for Tong whether the attorney general will continue to defend Fusaro if the Supreme Court finds that he can be sued as an individual. I didn't get an answer.

    As a Connecticut taxpayer, I would hope the answer is no.

    A spokesman for the attorney general said they would have no comment on the case beyond what is in the briefs.

    It's not too early for Groton officials to start to ponder some of these issues, as the state's highest court decides in the near future whether the town's police chief might go on trial for alleged reckless or malicious behavior that resulted in a young's man's untimely death.

    This is the opinion of David Collins.

    d.collins@theday.com

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